February 05, 2010

Justice Thomas Gives Shout-Out to Florida Lawyer

Supreme Court justices don't often compliment the lawyers who appear before them -- much less lawyers who argued more than 15 years ago. But that's what Justice Clarence Thomas did in his talk Thursday before the University of Florida Levin College of Law, where he was giving the Marshall Criser Distinguished Lecture. As we reported here Thursday it was a wide-ranging conversation with students.

One student asked about oral advocacy before the Court, and how justices can be persuaded. Thomas began his answer with a familiar jab at his fellow justices for asking too many questions. "If my colleagues would let you talk ... assuming that improbability," he said, drawing laughter. But then he turned serious and recalled, "I have been persuaded by a lawyer from Florida." The lawyer was also a CPA and a certified financial planner, he said, and she was disciplined for including that information in her advertising. "She argued her own case," said Thomas. "She was clear, you could see she was honest, she knew the record, and she won her case."

The lawyer Thomas was complimenting is Silvia Ibanez, the petitioner in the 1994 case Ibanez v. Florida Dept. of Business & Professional Regulation Board, one of several commercial speech cases the Court issued in that period. By a 7-2 vote, the Court ruled that the board's action violated her First Amendment rights, and that the CPA and CFP designations were not misleading.

We caught up with Ibanez, who now practices transactional, tax and estate law in Kissimmee. She was pleased to hear about Thomas's comment. Ibanez has not argued before the high court since then, but she said she still gets asked about the case occasionally. She once taught a course in which she used the decision, surprising her students with the news that it was literally her case.

Ibanez recalled being unsure whether she should argue the case herself, remembering the adage about lawyers who represent themselves having fools for clients. She had never argued a case at any appellate level before. But after a moot court in which the mock judges urged her to proceed, she decided to take her once-in-a-lifetime chance and appear before the Court. "Like everything in life, preparation is the key -- hard work and preparation," she said. "I thought, 'no one knows the case better,' so I decided, why not."

One of the strategic decisions she had to make before the argument was how to refer to herself -- first or third person? "I decided to use 'petitioner' instead of 'I.'" It worked.

Ibanez said that to her mind, the case was notable for another reason that she did not think anyone has picked up on: the case was argued by two women -- herself, and Lisa Nelson for the state of Florida -- and both the opinion and the dissent were written by women -- Justices Ruth Bader Ginsburg and Sandra Day O'Connor, respectively. You can listen to the oral argument at the Oyez Project site here.

Comments

There was a bankruptcy case out of the Eighth Circuit (?) in which the petitioner, a lawyer, also argued on his own behalf at the Supreme Court.

At the outset, he referred to himself as "The Petitioner," upon which Justice O'Connor interjected "Petitioner? That's you, isn't it?" upon which the lawyer gamely switched to refering to himself, directly.

So, referring to yourself as "Petitioner" during oral argument does not always work.